This following is a guest post by Sayuri Umeda, a foreign law specialist who covers Japan and various other countries in East and Southeast Asia. She has previously written posts for In Custodia Legis on various topics, including testing of older drivers in Japan, English translations of post-World War II South Korean laws, laws and regulations passed in the aftermath of the Great East Japan Earthquake, the regulation of fugu (pufferfish), and the prevalence of adult adoptions in Japan. She has also highlighted our collections related to Japanese family law and Cambodian law.
The part of the Japanese Penal Code that deals with sexual offenses is in the process of being amended. This includes the deletion of a provision that requires a complaint from a victim in order for law enforcement to charge the accused perpetrator.
There was pressure from outside the country for this legislative move. In 2009, the U.N. Committee on the Elimination of Discrimination against Women stated in its Concluding Observations regarding Japan that it “is concerned that, under the Penal Code, the crime of sexual violence is prosecuted only upon complaint by the victim…” In 2016, the same Committee recommended that Japan expedite the amendment of the Penal Code to “ensure ex officio prosecution of sex crimes,” among other changes.
Inside Japan, the Gender Equality Bureau of the Cabinet Office included a direction in the 2010 Basic Plan for the National Police Agency and the Ministry of Justice to review the “prosecution upon complaint” system, among other issues relating to sex crimes (Priority Field 9, Item 3). Then, in July 2012, the Special Research Group on Violence Against Women of the Gender Equality Committee, under the Gender Equality Bureau, stated in a report that many members suggested that the system should be changed. In 2014, then-Minister of Justice Midori Matsushima set up a discussion group within the Ministry of Justice to consider amendments to the Penal Code.
However, many in Japan do not support the change to allow prosecution without a formal complaint from a victim. In fact, it was reported that Matsushima had stated that it was a quite difficult issue and she needed to listen to people with different viewpoints. (Justice Minister Matsushima, Indictment of Rape Suspect without Complaint … A Group Will Start Discussion Next Month, YOMIURI (Sept. 30, 2014) (in Japanese, on file with author).) The current provision has existed since the 1907 Penal Code was enacted. A similar provision also existed in the old Penal Code of 1880. During the legislative discussion about the 1880 Penal Code, the purpose of the provision was explained as follows:
Parents of rape victims would be angry at the rapists, but some of them prefer to keep it quiet because being raped is shameful for the victims, and they may not welcome indictment of the suspect by a prosecutor.
In addition, though the rapists should be blamed, the shame and dishonor of being raped may supersede the need to blame rapists in some cases. For example, if a virgin is raped, and people talk about it, men would hesitate to marry her.
As someone who was raised in Japan, it is not surprising to me that the majority of Japanese people held on to this sentiment from 1880 up until recently, although nowadays the feelings of parents and future husbands would be regarded as less important. I am not aware of there being any notable discussions on this issue until recently. Textbooks state that the provision exists in order to respect the victim’s will and protect her privacy (e.g., Minoru Oya, Keiho Kakuron 75 (2001)).
In recent hearings, it was confirmed that there are still many rape victims who do not want the cases to be investigated by the police and prosecutors, or to be sent to a court. However, when a victim chooses not to complain to the police, it does not mean that she wants the perpetrator to be left alone or go unpunished. In these discussions, it was argued that the issues of maintaining the privacy of victims and punishing aggressors must be separated. That is, ensuring privacy for victims must not be at the cost of punishing perpetrators.
The Ministry of Justice discussion group raised the following problems with requiring a complaint from a victim:
- It is too much of a burden on victims to require them to enter a formal complaint in order for a case to be brought;
- Some victims do not make a complaint because of pressure from the perpetrator. Such pressure is especially strong in situations where the aggressor is someone the victim knows;
- Some victims blame themselves and do not consider themselves as victims;
- Some victims are afraid of revenge from aggressors;
- Some victims are so confused that it is hard for them to complain.
Based on these reasons, the majority of the Judicial System Council of the Ministry of Justice that examined possible revisions to the Penal Code was in favor of removing the requirement to have a complaint from a victim in order to indict an accused person for rape and other sex crimes. It was also pointed out that it is important to enhance measures aimed at protecting victims and maintaining their privacy during the investigation and trial.
It seems likely that a provision in the Penal Code that has existed for more than a century will soon be deleted. A bill containing the change, among others, was submitted to the Japan House of Representatives last month.